In my March 2018 guest post titled Intro to IP and Blockchain: A Primer, I provided an overview of blockchain technology and its first use case, cryptocurrency. In that post, I also summarized what blockchain means for copyright, patent, and trademark clients and practice.
Essentially, blockchains are decentralized, digital ledgers of encrypted transactions that are distributed across a computer network and confirmed by network participants rather than a centralized entity (like a government, business, or institution). Although the identity of transaction participants is encrypted, the actual transactions are publicly viewable (at least in the case of public blockchains like the Bitcoin Blockchain). Groups of verified transactions are bundled together into “blocks”, and each block is connected to the block created before it, thereby creating a chain of immutable, censorship-resistant blocks—blockchains.
If you’re new to this topic, read my March 2018 post first. The information in this post builds on that information. Here, I take a deeper dive into the copyright issues practitioners and their clients should be aware of when leveraging blockchains to protect, record, manage, and distribute copyrighted works.
Copyright protects an author’s original literary or artistic work that is fixed in a tangible medium of expression. Copyright is governed by national laws—and therefore managed by a centralized governmental agency—so the extent of protection depends, of course, on the laws of a particular country. However, most countries offer some protection of foreign works by complying with international treaties and conventions. There are two principal international copyright conventions, the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) and the Universal Copyright Convention (UCC).
Contrary to the national copyright law regime, public blockchains are borderless and censorship resistant. So, for example, someone in the United States could complete a transaction with someone in Switzerland without any centralized private or public intermediary. Given the ability of creators to deal directly with content consumers and licensees in this way, the power and promise of leveraging copyrighted works via blockchains becomes immediately apparent.
For creators, removing “the middle man” has always been of keen interest; but creative content industries are dominated by such intermediaries. Forward-thinking creators and creative content industries—from music to photography—are exploring blockchain’s distributed ledger technology to protect, preserve, and exploit copyrighted content. Examples include Binded, Ujo, CopyTrack, and Kodak, just to name a few. And even some governments are quietly exploring how to implement blockchain technology for their copyright registration systems. For example, Iran’s Financial Tribune recently reported that “Iran is set to transform its online copyright protection system by application of blockchain technology.” It is important to note, however, that copyright registration is the domain of national governments and no registration repository currently replaces actual registration with, for example, the Copyright Office in the United States. But the potential of blockchain technology for copyright registration cannot be underestimated.
In addition to official copyright registration, copyright-content industry stakeholders are asking whether blockchain technology can solve a range of chronic problems in copyright protection, management, and exploitation; problems exacerbated exponentially with the advent of the internet and digital technology. Just how would it solve these issues? Blockchain’s immutable and transparent qualities seem particularly well-suited to assist in verified identification and authentication of works (through tagging or watermarking, for example) and in identification and attribution and of the content creator and/or rights holder to seek permission to copy, distribute, adapt, publicly display and perform copyrighted works. Such chain-of-title questions could also solve for the orphan works problem, where it is difficult or impossible to identify or contact the rights holder, given that copyright interests vest automatically when an original creative work is fixed in a tangible medium of expression but the law in most nations does not require registration (which creates a public record) for rights to exist.
Maintaining copyright management information, is another important part of the United States Digital Millennium Copyright Act. Creating a public, immutable record of ownership would avoid removal and alteration issues and could also aid in enforcement of rights. An owner’s ability to enforce her rights becomes easier as well if copyright owners sell or license works via smart contracts managed on a blockchain.
The decentralized aspect of pure blockchains (those that hold true to DLT’s original decentralized, permissionless, transparent vision) is also a valuable component of copyright protection. When copyright information is centralized within a country’s borders and managed by a centralized governmental entity, trust issues result. Dr. Hadar Mazer explains:
“… a centralized database is only as trusted as the entity that controls the database. If the centralized database and the entity that controls the database undergo unethical behavior, then trust issues emerge by the collapse of the database and the records may not be of any value and may not be valid.”
A final but important issue is the copyrightability of code. Public blockchain code is generally open-source and subject to open-source licenses. Even private blockchain code is generally based, at least in some part, on existing open-source code. So, as I discussed in Intro to IP and Blockchain: A Primer, it is difficult to parse out copyrightability and ownership. Blockchain developers are well-advised to take great care if they intend to assert proprietary rights in code and consult an attorney well versed in both copyright and blockchain law.
In summary, blockchain technology is poised to disrupt copyright law. So practitioners, creators and rights holders must educate themselves about the impact and import of blockchain technology in copyright law.
About the Author: Tonya M. Evans, Esq., is a US-based lawyer who currently serves as Professor of Law at the Penn State Dickinson Law School. She speaks, writes, and teaches primarily in the areas in intellectual property and new technologies, including the global intellectual property implications of blockchain technology.